Doe et al v. Cabell County Board of Education et al
MEMORANDUM OPINION AND ORDER granting Plaintiffs' 33 MOTION to Amend; the Amended Complaint therefore replaces the original 1 Complaint and renders it a nullity; denying as moot Defendants' 15 and 24 MOTIONS to Dismiss. Signed by Judge Robert C. Chambers on 10/6/2021. (cc: counsel of record; any unrepresented parties) (jsa)
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IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
JANE DOE, as parent, natural guardian
and next friend of JOHN DOE,
CIVIL ACTION NO. 3:21-0031
CABELL COUNTY BOARD OF EDUCATION and
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Cabell County Board of Education’s and
Defendant Jason Curry’s Motions to Dismiss (ECF Nos. 15, 24), and Plaintiff’s Motion to Amend
(ECF No. 33). For the reasons stated herein, the Court GRANTS Plaintiff’s Motion to Amend and
DENIES AS MOOT Defendants’ Motions to Dismiss.
Plaintiff Jane Doe filed a complaint on January 14, 2021, on behalf of her minor
son, John Doe. She alleged that her son, a severe special needs middle schooler at a Cabell County
School, was inappropriately touched by his teacher’s aide, Mr. Curry, on two separate occasions.
The first incident occurred on October 15, 2019 and was not documented by school personnel or
reported to the victim’s parents. After a special needs teacher witnessed the second assault on the
victim on November 22, 2019, she reported it to school authorities. The school principal then
reported the incident to the Cabell County Sheriff’s Department. In a meeting on the same day, the
principal advised the victim’s parents of the second incident and mentioned in passing that he had
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previously advised Mr. Curry not to let John Doe sit on his lap. On November 22, 2019, school
personnel also prepared an incident report which discussed the October assault, but the details of
this first assault were not shared with the victims’ parents. It was only after the state prosecutor
filed a criminal charge against Mr. Curry that the victim’s parents learned (from the prosecutor) of
the first October incident, even though Defendants are allegedly mandatory reporters of child
Plaintiff filed a complaint alleging the following causes of action against Mr. Curry and the
Cabell County Board of Education (“CCBE”): Count I, Violation of 42 U.S.C. 1983; Count II,
State Constitutional Tort; Count III, Negligence; Count IV, Tort of Outrage/Reckless Infliction of
Emotional Distress; Count V, Disability Discrimination in Violation of West Virginia Human
Rights Act; Count VI, Disability Discrimination in Violation of Americans with Disabilities Act;
Count VII, Violation of the Rehabilitation Act; Count VIII, Civil Assault; and Count IX, Civil
Battery. Defendant CCBE filed a motion to dismiss all claims except for Count III. Defendant
Curry filed a motion to dismiss Counts III, IV, V, VI, and VII in their entirety and Counts I and II
in part for failure to state a claim.
On August 3, 2021, Plaintiff filed a Motion to Amend. ECF No. 33. On August 17, 2021,
Defendant CCBE filed a response, alleging that all amendments were futile and must be denied
and that amendment to Count I was also prejudicial. ECF. No. 36.
No Scheduling Order has been entered in this matter. Consequently, the Court looks to
Rule 15 of the Federal Rules of Civil Procedure to resolve Plaintiff’s Motion to Amend. Federal
Rule of Civil Procedure 15(a)(2) provides that “a party may amend its pleading only with the
opposing party's written consent or the court's leave,” and directs courts to “freely give leave when
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justice so requires.” Fed. R. Civ. P. 15(a)(2). Indeed, the “law is well settled that leave to amend a
pleading should be denied only when the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the amendment would be futile.”
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999) (internal quotations omitted)
(emphasis in original).
In this case, the Court sees no indication of bad faith on Plaintiff's part. The proposed
amendments are not obviously futile, either—in fact, they significantly clarify many of the issues
implicated by this case. Nor will the proposed Amended Complaint prejudice Defendants as this
action moves forward because it merely adds an additional theory of recovery to facts already pled
and has been offered before a significant amount of discovery has occurred. See Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980).
The Court accordingly GRANTS Plaintiff's Motion to Amend. ECF No. 33. The Amended
Complaint, ECF No. 33-1, therefore, replaces the original Complaint, ECF No. 1, and renders it a
nullity. See Fawzy v. Wauquiez Boats SNC, 973 F.3d 451, 453 (4th Cir. 2017). Insofar as “motions
directed at superseded pleadings are to be denied as moot,” Skibbe v. Accredited Home Lenders,
Inc., No. 2:08-cv-01393, 2014 WL 2117088, at *3 (S.D.W. Va. May 21, 2014), Defendants’
Motions to Dismiss are accordingly DENIED AS MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
ENTER: October 6, 2021
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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